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Archive for the ‘Leadership’ Category

A recent symposium for IT executives included a presentation that pitched the idea of genetic screening of job applicants for traits like “honesty, leadership, being a team player, and having a high level of emotional intelligence”. While we think you may want to hang onto your checkbook if offered this sort of service, it is a disturbing outgrowth of the burgeoning research into genetic testing for almost everything. Here is a quote from the Seeker website which brought this possibility to our attention:

Although federal and states laws prohibit employers from requesting or using an employee’s genetic information, genetic testing is mainstream. Millions of people voluntarily pay to have their genomes analyzed thanks to inexpensive DNA kits available from companies like Ancestry DNA , Genome , 23andMe, Family Tree, to name a few. And research is moving forward in fields such as psychiatric genetics, trying to find correlations between genes and behavior.

“We fully appreciated the lack of legality and some of the issues with the science,” Furlonger told Seeker by email. “Nonetheless, it seems clear that work is being undertaken and therefore the current state should not be ignored.”

We are glad they appreciate the “lack of legality”. (Some researchers do not acknowledge the legal concerns—like this group on how to hire the “good psychopath” by testing them pre-hire.) The actual best answer to this question is that there is no gene for leadership (or honesty, or being a team player, or having high emotional intelligence) and there is no way testing of this sort would be useful to a company trying to figure out who to hire.

“Why would an employer rely on imperfect, and generally weak, associations between genes and test scores instead of relying directly on the test scores?” said Henry Greely, director of the Center for Law and the Biosciences at Stanford University and the chair of steering committee of the Center for Biomedical Ethics. It’s like running, he said. Rather than look for genetic variations that indicate whether someone is a good sprinter or not, just watch a person sprint. That ought to tell you all you need to know.

We agree and are glad to have voices of reason speaking out against the desire to “push the hiring envelope” into areas that make no sense and violate medical privacy (as well as statistical integrity). Because while the genetic testing can’t tell you anything about the purported target traits, they can tell you things about the person that should not be a factor in hiring (including gender, possibly ethnicity, and medical issues). Will genetic testing results be a tool to worsen the problems of women and non-Asian minorities in breaking into STEM fields? Here’s what we wrote in August 2016 when we came across the “good psychopath” workplace fit test. We think it works for this idea too.

From a law office management perspective, we really would urge rejecting this sort of strategy. What they seem to intimate is that you want to find the 10% of the psychopathic population who have moderate psychopathic tendencies and then, divide them into primary and secondary psychopaths and then, figure out which of the primary psychopaths have really good social skills so their behaviors will not wreak havoc in your workplace.

Putting on our duly licensed Psychologist hats for a moment, the distinction seems to be a very slippery slope. Secondary psychopaths are trouble from the beginning. Primary psychopaths have better social skills so they can manage the day-to-day more successfully, but under stress they are going to create havoc, too. And we have never seen a trial team that isn’t under terrific stress. It is the nature of litigation, and stress tolerances need to be higher than average, not a potential area of weakness.

The authors put a troubling amount of faith in a psychological trait scale, when you can assess the same things by looking at work history, length of relationships, and having your own warning signs on high alert during the interview process. Use your intuition about whether someone will be a good fit. It is also risky to assume you can “get around” the Americans with Disabilities Act by using the PPI-R scale with job applicants when what you are measuring is psychopathy and resulting goodness of fit in your workplace.

And a high-functioning psychopathic attorney is just the kind of person to drag you through a lawsuit by claiming that you rejected him or her based on an ADA protected factor.

Here’s another sneaky way researchers try to figure out your real feelings rather than your politically correct and overtly verbalized feelings. This is research from Nextions showing bias still exists in the legal field and it’s about your grammar. Well, really, it isn’t about grammar—it’s about race. On the other hand, the sample size is low (slightly above 50 law partners returned the survey) so you could say this isn’t what you would do…and in fact, not everyone would do what was found among this research group.

Here’s what they did in this very simple study. Researchers had five attorneys cooperate in writing up a legal research memo on trade secrets at internet startup companies. The researchers then placed 22 errors of various kinds into the memo. The researchers sent the legal research memo to 60 partners in law firms who were asked to assess it as an example of the “writing competencies of young attorneys”.

Fifty-three of the partners actually returned the writing sample with comments (that’s an 88% return rate which is quite good). In the event you are interested, of the original 60 partners, 23 were women, 37 were men, 21 were racial/ethnic minorities, and 39 were White. The participating partners were asked to edit the memo for “all factual, technical and substantive errors” and then asked to rate the overall quality of the memo on a scale from 1 (“extremely poorly written”) to 5 (“extremely well written”).

So here is the catch: half of the partners were told the writer was Black and half were told the writer (one Thomas Meyer who was described as a third-year associate with a degree from the NYU School of Law) was White. In other words, the associate’s credentials were exactly the same—the difference was that half thought he was Black and half thought he was White. You have likely already figured out how this turned out but we’ll tell you anyway.

When the partners were told the associate was Black, they judged his written memo much more harshly.

The following descriptions of the way Black and White associates writing was critiqued is quoted from Nextion’s report:

“In regards to the specific errors in the memo:

An average of 2.9/7.0 spelling grammar errors were found in “Caucasian” Thomas Meyer’s memo in comparison to 5.8/7.0 spelling/grammar errors found in “African American” Thomas Meyer’s memo.

An average of 4.1/6.0 technical writing errors were found in “Caucasian” Thomas Meyer’s memo in comparison to 4.9/6.0 technical writing errors found in “African American” Thomas Meyer’s memo.

An average of 3.2/5.0 errors in facts were found in “Caucasian” Thomas Meyer’s memo in comparison to 3.9/5.0 errors in facts were found in “African American” Thomas Meyer’s memo.

The 4 errors in analysis were difficult to parse out quantitatively because of the variances in narrative provided by the partners as to why they were analyzing the writing to contain analytical errors. Overall though, “Caucasian” Thomas Meyer’s memo was evaluated to be better in regards to the analysis of facts and had substantively fewer critical comments.”

Vox did a nice summary of this study and translated Sexton’s narrative descriptions into a chart making it easier to ‘see’ the differences identified by law partners when they thought the writing sample was from a White associate or a Black associate.

Nextion says this study tells us that due to confirmation bias, law partners are more harsh when judging Black associates’ writing. The Vox review cautions us that we are talking about a fairly small sample here (53 partners in total) and each partner only reviewed one writing sample.

If, says Vox, the partners reviewed more than one writing sample and those who reviewed Black associates writing were always harsher—that would mean the partners were harsher for Black Thomas Meyer than they were for White Thomas Meyer. Since the partners only reviewed one writing sample—we cannot be sure if this is an artifact of some partners being harsher than others or if it is truly bias that tells us Black associates are judged more harshly. Or those who reviewed it might have been having a bad day. Maybe.

The qualitative comments shared from the partner’s reactions remind us of the inconsistent comments we often get from our mock jurors as they evaluate witnesses based on brief deposition excerpts. Remember—before reading these reactions to the writing samples—the law partners received identical memos—the only difference was whether they thought the writer was Black or White.

From the perspective of law office management—this study reminds us (again) to pay attention to making all of our evaluations as objective as we can so our subjective (and often biased) opinions do not enter into our evaluations. What that means is that you need to look at the specific expectations of the position and list objective criteria for evaluation related to hiring, raises, promotion, and assignments to various cases.

Our biases are almost always hidden from us (it’s called a bias blind spot) and studies like this one, if reliable, tell us we are not as open to diversity as we may want to believe. If you are concerned about managing diversity effectively and other aspects of leadership, you may want to visit our other posts under the Law Office Management category.

It wasn’t long ago we said all you had to do to be seen as a leader was grow a mustache but apparently this also helps! Men who look “strong” physically are presumed to be good leaders compared to men who do not look strong physically. These researchers had mastered Photoshop so we know their results reflect our (stereotypical) beliefs accurately.

The researchers showed groups of men and women photographs of different men (from the waist up in a white tank top to reveal his shoulder, chest and arm muscles) and told their task was to rate some men recently hired by a consulting firm. The participants were asked to rate the men in the photographs on the basis of how much they admired the individual, how much they held him in esteem, and how much they believed he would rise in status. They were asked specifically about whether they thought the man in the photograph would be a good leader and whether they thought he would be effective in dealing with others in a group.

You already know what happened here. The participants chose the men who appeared physically stronger to be leaders and rated them as having higher status than those who appeared physically less strong.

Undeterred, the researchers went to Photoshop and switched the bodies of the strong and weak (rated) men in the photos. That is, strong bodies went to the faces of men who’d been rated as weaklings and poorer leaders and weak bodies went to the faces of men who’d been rated as strong. The same questions were asked of participants in the Photoshopped experiment.

And yes. The results reversed with the previously weak men now being seen as strong and higher in status and leadership qualities. Buff bodies won.

So then the researchers returned to Photoshop and this time used their powers to vary the height of the photographed men who were now presented in small groups (a lineup as the researchers call it). Each subject’s appearance was manipulated so he appeared short, tall, and of equal height to the other men in the lineup.

Yes. Yes. You know. Taller men were seen as stronger and were also rated as being better leaders and having higher status than shorter men.

From a litigation advocacy perspective, this tells us that first impressions matter but then you knew that. But we’ve seen solid testimony and a likable demeanor endear witnesses who do not appear physically strong to juries.

In a mock trial a number of years ago, one of our attorney-clients was curious as to how his witness would be perceived since he was not classically attractive and had a medical condition that affected his voice and appearance. The witness, well aware of the way he came across, was in attendance at the mock trial and also wanted to see if his presentation would be a detriment to the case.

After some planning (since this is not something we usually do—and usually urge that it not be done— at mock trials), the witness went in and engaged in direct and cross-examination in front of the mock jurors. On direct, the attorney asked him about his voice and appearance and the witness answered directly and concisely with a smile. With that matter dispatched, the remainder of the questioning was done and as the witness’ voice cracked and squeaked, the jurors listened intently. What they told us afterwards was that they found him extremely likable and when they knew what caused the “differentness” in his appearance and voice—they were able to focus instead on what he said and how it fit into the case.

First impressions are important but they can be altered and restructured. In our experience with pretrial research—jurors often are very supportive of a case when the attorney tells a good story. But then, if witness depositions do not match up with the juror’s picture of that witness—their predisposition to like the witness shifts and they begin to eye the attorney with suspicion.

The takeaway for litigation advocacy is a simple one: Remember that attractive, strong, tall men (in this case) are seen as better in many ways. Our suspicion is that part of it is related to beauty being admired, but it is likely also related to research on obesity. People who are obese are often seen as less disciplined, less careful, less capable, and less credible than people who are more trim. It seems likely that obviously fit and buff witnesses represent the opposite end of the spectrum, with all of the positive attribution that comes with that.

When your client is not buff or beautiful, focus instead on likability and relatability. Close the gaps in testimony that leave the listener wondering about sincerity and trustworthiness, and help your client tell a story that emphasizes their similarity to the jury—whether that is through shared values, treasured activities, or shared experiences—the more your client is “like” the jurors, the more the jurors are likely to embrace the client and his or her perspective as presented in testimony.

In short, the authors conclude we need to pay more attention to the mental health needs of attorneys in this country and we need to address the stigma and loneliness often experienced with these struggles. What we want to do with this blog post is display some of the numbers referenced in the article itself. If you are an attorney struggling with depression, anxiety, and/or excessive substance use (or know one who is)—you are very much not alone.

The authors of this study wanted to count the incidence of substance abuse and other mental health concerns and so they assessed alcohol use, drug use, and symptoms of depression, anxiety and stress in a group of 12,825 licensed and employed attorneys. To pull together a group of this size, “recruitment was coordinated through 19 states. Among them, 15 state bar associations and the 2 largest counties of 1 additional state emailed the survey to their members”. Participants were not asked for any identifying information (and IP addresses and geographic location data were not tracked).

In the group were roughly equal numbers of men (53.4%) and women (46.5%) and the most commonly reported age group was between 31 to 40 years of age while the sample included attorneys up to 71+ (as long as they were licensed and employed). Most of the participants (91.3%) identified as White. Private firms were the most common work environment (40.9%) with the most common positions listed as Senior Partner (25%), Junior Associate (20.5%), and Senior Associate (20.3%). Over 2/3 of the sample (67.2%) reported working 41 hours or more per week. In other words, this is a pretty representative sample of practicing attorneys.

Here are some of the numbers the authors reported on mental health and substance abuse issues in this large group of attorneys.

Alcohol use. Of the 11,278 participants who completed all ten questions on the measure of alcohol use, 20.6% scored at the level “consistent with problematic drinking”.

Men had higher levels of “problematic drinking” than women, younger participants had higher “problematic drinking” scores than older attorneys, and those who had been working as attorneys for shorter times were drinking more than those who’d worked in the field longer. Attorneys working in private firms or at bar associations had higher rates of drinking than those in other employment situations. Junior and senior associates drank more than those in other positions.

22.6% reported feeling alcohol use (or other substance use) had been a problem at some point in their lives. (27.6% said the problematic use was before law school, 14.2% during law school, 43.7% within 15 years of completing law school and 14.6% said their substance use had been a problem more than 15 years after completing law school. Age was the only significant predictor of alcohol use (with younger attorneys drinking more than older attorneys).

Drug Use. Participants also completed questions regarding substance use other than alcohol. Perhaps because many of these substances are illegal, there were not enough participants completing the questions to compare to national norms. However, the most common drugs in at least weekly usage were stimulants, sedatives, tobacco, marijuana and opioids.

Mental health issues. 11,516 participants completed the questions on mental health issues so we have good comparison numbers here. Men had higher levels of depression but women had higher levels of anxiety and stress. Older participants had higher levels of both stress and depression. Those who were classified as “non-problematic drinkers” on the earlier measure also reported lower levels of depression, anxiety and stress.

The most commonly reported mental health conditions were anxiety (61.1%), depression (45.7%), social anxiety (16.1%), attention deficit hyperactivity disorder (12.5%), panic disorder (8.0%), and bipolar disorder (2.4%) 11.5% reported having had suicidal thoughts during their career, 2.9% had “self-injured” in some way in the past and 0.7% reported at least one prior suicide attempt.

The authors express concerns that the high rate of problematic use of alcohol and the relatively high rate of anxiety, stress and depression among attorneys be addressed. They say that the level of problematic drinking is at a rate among lawyers that is much higher than other populations. Depression, stress, and anxiety are also significant issues and both substance use and mood disturbances are often effectively treated (and can be treated at the same time). The authors express hope that specialized treatment services and guidelines for attorney recovery will be developed similar to what has been done for impaired physicians.

For all of the talking about the universality of mental health issues (substance abuse, stress, anxiety, depression), it is difficult to admit it, or to seek support or assistance in coping with it. One of the issues not described in most of the article is whether the person reporting the history felt themselves to be a “problematic drinker”, or whether the mood and anxiety problems were brief or chronic. Those factors have a lot to do with whether people choose to seek help. Unfortunately, the social and professional stigma that causes people to deny problems and resist seeking help isn’t going to go away soon.

We’ve recently been informed that The Jury Room has been inducted into the ABA Journal Blawg 100 Hall of Fame! Okay, it’s not a Pulitzer, but we are wildly happy about it. To our way of thinking, it is the greatest honor The Jury Room could be given. We appreciate the recognition. Closer to truth, we are shocked. Every December from 2010-2014 we have been delighted to be included in the Blawg 100, but this was not even on our radar screen. Here’s a link to the 2015 ABA Blawg Hall of Fame and a link to the 2015 Blawg 100 honorees.

Here’s how the ABA describes the Blawg 100 Hall of Fame:

In 2012, we established the Blawg 100 Hall of Fame for those blogs which had consistently been outstanding throughout multiple Blawg 100 lists. The inaugural list contained 10 inductees; this year, we added 10 more, bringing the total to 40.

And here is how they described this blog on their roster:

Trial consultants Douglas Keene and Rita Handrich find the research to alternately back up what you think you already know about human psychology (Is rudeness contagious? Yes.) and alert you to the unexpected (Are “beer goggles” real? No.) Posts are both fascinating reads and lessons on how not to base your cases on stereotypical assumptions.

We were inspired to begin blogging by Anne Reed (formerly of Deliberations blog and now leading the charge at the Wisconsin Humane Society). Once we got started blogging, we realized it was a wonderful way to keep up with the changing literature and to share what we were learning along the way. Looking back over the 900+ posts, we still find it interesting to blog as well as a great impetus for our own continuing education. Thank you, ABA Journal, for your recognition of our work over the last 6-1/2 years.